PART II LEGAL CAPACITY, STATE OR DIPLOMATIC IMMUNITIES OF THE ICC 3. Legal capacity, State or diplomatic immunities.4. Proof of orders, etc. of the ICC.5. Admissibility of evidence about proceedings, etc.

Forms of assistance 30. Questioning.31. Taking or production of evidence.32. Service of process.33. Transfer of prisoner to give evidence or assist in investigation.34. Entry, search and seizure.35. Taking of fingerprints or non-intimate sample.36. Destruction of fingerprints and samples.37. Provision of records and documents.38. Investigation of proceeds of ICC crime.39. Production or access orders.40. Special production or access orders.41. Effect of production or access order.42. Order in relation to material in possession of Government department.43. Search warrants.44. Freezing orders in respect of property liable to forfeiture.45. Appointment of receiver.46. Seizure to prevent removal from jurisdiction.47. Bankruptcy.48. Winding up.49. Protection of insolvency practitioners.50. Production or disclosure prejudicial to national security.51. Verification of material.52. Transmission of material to the ICC.53. Arrangements for cooperation with the ICC.

PART V ENFORCEMENT OF SENTENCES AND ORDERS Sentences of imprisonment 54. Detention in Gibraltar in pursuance of an ICC sentence.55. Domestic provisions not applicable to ICC prisoner and temporary transfers.56. Power to make provision for enforcement of other orders.

(4) Where a consent to surrender has been given by a person who is brought before the court– (a) it shall forthwith make a delivery order; and (b) that person shall be taken to have waived his rights to review of a delivery order under section 15.

(5) Where consent to surrender has been given, notice of that fact shall be given– (a) if the person is in custody, to the Superintendent of Prisons, police officer or other person in whose custody that person is; (b) if the person is on bail, to the officer in charge of the police station at which he is required to surrender to custody.

(6) For the purposes of subsection (5) notice shall be treated as given if it is sent by registered post, or any other means of recorded delivery, addressed to the officer mentioned in that subsection.Proceedings where court refuses order.12.(1) Where the court refuses to make a delivery order, it shall– (a) make an order remanding the person arrested; and (b) notify the Attorney General of its decision and of the grounds for such refusal.

(2) If the court is informed without delay that an appeal is to be brought under section 13, the order remanding the person arrested shall continue to have effect and if it is not so informed, it shall discharge the person arrested.Appeal against refusal of delivery order.

(3) If the Court of Appeal dismisses the appeal, the Attorney General may file an appeal to Her Majesty in Council with the leave of the Court of Appeal.(4) Her Majesty in Council may exercise any of the powers conferred on the Court of Appeal by subsection (2).(5) Where a delivery order is made by the Court of Appeal or Her Majesty in Council, the provisions of section 14(1)(a) and (c), (2) and (3) shall apply in relation to the Court of Appeal as they apply to the court in order to make a delivery order.(6) An order for the remand of the arrested person that continues in force under section 12(2) shall cease to have effect if the Court of Appeal dismisses the appeal and the Attorney General does not, without delay– (a) apply for leave to appeal to Her Majesty in Council; or (b) inform the Court of Appeal that he intends to apply for such leave.

(4) Where a person has waived his right to review of the delivery order– (a) no application for habeas corpus may be made; and (b) the order shall be taken for all purposes to be validly made.

(5) Where a person has waived his right to review, notice of such waiver shall be given– (a) if the person is in custody, to the Superintendent of Prisons, police officer or other person in whose custody he is; or (b) if the person is on bail, to the officer in charge of the police station at which he is required to surrender to custody.

(6) A notice given under subsection (5) shall be treated as given if it is sent by registered post, or other means of recorded delivery addressed to the officer mentioned in that subsection.Effect of warrant of arrest.17.(1) For the purposes of any provision of law for the time being in force in Gibraltar which relates to warrants of arrest– (a) a section 6 warrant endorsed or issued in Gibraltar; or (b) a provisional warrant issued in Gibraltar, shall be treated as if it were a warrant for the arrest of a person for an offence committed in Gibraltar.

(6) The court shall not grant an application for bail in proceedings under this Part unless– (a) the Attorney General and the Minister are notified of that application; (b) the Minister ensures that the ICC is consulted; and (c) a full consideration of any recommendation made by the ICC is given by the court.

(3) If no request referred to in subsection (2) is received by the Minister before the end of the period of 96 hours beginning with the time of the arrested person’s unscheduled landing– (a) the Minister shall forthwith notify the court of that fact; and (b) the court shall, on receipt of the notification, discharge the arrested person.

(4) Where the Minister directs that extradition proceedings be discontinued, the court before which the proceedings are pending or in progress shall– (a) order their discontinuance; and (b) make any other order necessary to enable the delivery order to be executed, including any necessary order as to the custody of the person concerned.(5) The discontinuance of extradition proceedings under this section in respect of an offence, does not prevent the institution of fresh extradition proceedings in respect of the offence.

Form of assistance Questioning.30.(1) Where the Minister receives a request from the ICC for assistance in questioning a person being investigated or prosecuted, that person shall not be questioned in pursuance of the request unless– (a) he has been informed of his rights under Article 55; and (b) he consents to be interviewed.

(2) The provisions of Article 55 are set out in Schedule 1.(3) Consent for the purposes of subsection (1)(b) may be given– (a) by the person himself; or (b) in circumstances in which it is inappropriate for the person to act for himself by reason of his physical or mental condition or his youth, by an appropriate person acting on his behalf.(4) A consent under this section may be given orally or in writing, but if given orally it shall be recorded in writing as soon as is reasonably practicable.Taking or production of evidence.

(4) The modifications are that– (a) the references in section 39(3) to material which the specified person has in his possession, custody or power shall be read as references to the material that comes into his possession, custody or power; and (b) the references in section 39(4) to the date of the order shall be read as a reference to the date of the notification required by subsection (3)(a) of this section.(5) Provisions may be made by rules of court as to– (a) the discharge and variation of orders made under this Part; and (b) proceedings relating to such orders.(6) In this section “specified” means specified in the order.Effect of production or access order.41.(1) Where the material to which the order referred to in section 39 or 40 relates consists of information contained in a computer– (a) a production order has effect as an order to produce the material in a form in which it can be taken away and in which it is visible and legible; and (b) an access order has effect as an order to give access to the material in a form in which it is visible and legible.(2) An order made under section 39 or 40 does not confer any right to production of, or access to, items subject to legal privilege.(3) Subject to subsection (2), the order has effect notwithstanding any obligation as to secrecy or other restriction upon the disclosure of information imposed by any law or otherwise.Order in relation to material in possession of Government department.42.(1) Nothing in this Act shall prevent the making of an order under section 39 or 40 in relation to material in the possession, custody or power of a government department.

(3) The regulations shall provide for the registration of the order by a court in Gibraltar as a precondition of enforcement.An order shall not be so registered unless the court is satisfied that the order is in force and not subject to appeal.If the order has been partly complied with, the court shall register the order for enforcement only so far as it has not been complied with.(4) The regulations may provide that– (a) for the purposes of enforcement an order so registered has the same force and effect, (b) the same powers are exercisable in relation to its enforcement, and (c) proceedings for its enforcement may be taken in the same way, as if the order were an order of a court in Gibraltar.The regulations may for that purpose apply all or any of the provisions (including provisions of subordinate legislation) relating to the enforcement in Gibraltar of orders of a court of a country or territory outside Gibraltar.(5) A court shall not exercise its powers of enforcement under the regulations in relation to any property unless it is satisfied– (a) that a reasonable opportunity has been given for persons holding any interest in the property to make representations to the court, and (b) that the exercise of the powers will not prejudice the rights of bona fide third parties.

PART VI OFFENCES UNDER DOMESTIC LAW Meaning of “genocide”, “crime against humanity” and “war crime”.57. In this Part– “genocide” means an act of genocide as defined in Article 6; “crime against humanity” means a crime against humanity as defined in Article 7; and “war crime” means a war crime as defined in Article 8.2.Interpretation and application of Articles.58. (1) In interpreting and applying the provisions of those articles referred to in section 57, the court shall take into account− (a) any relevant Elements of Crimes adopted in accordance with Article 9; and (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Preparatory Commission for the International Criminal Court adopted on 30th June 2000.(1A) The Minister shall set out in Regulations the text of the Elements of Crimes referred to in subsection (1), as amended from time to time.(2) The Articles referred to in section 57 shall, for the purposes of this Part, be construed subject to and in accordance with any relevant reservation or declaration made in the ratification of any treaty or agreement relevant to the interpretation of those Articles.(3) The Minister may by Regulations certify– (a) that a reservation or declaration referred to in subsection (2) has been made and the terms in which it was made;

(4) This section and, so far as may be necessary for the purposes of this section, the enactments and rules of law relating to the corresponding domestic offences apply to acts committed in Gibraltar.(5) If an offence under this section, or an offence ancillary to such an offence, is not committed in Gibraltar– (a) proceedings may be taken; and (b) the offence may, for incidental purposes, be treated as having been committed, in Gibraltar.(6) The relevant provisions of Article 70.1 are set out in Schedule 3 to this Act.

(2) In subsection (1)(a) the reference to aiding, abetting, counselling or procuring is to conduct that in relation to an indictable offence would be punishable under section 17 of the Criminal Offences Act.(3) In subsection (1)(b) the reference to incitement is to conduct amounting to an offence of incitement at common law.(4) In subsection (1)(c) the reference to– (a) an attempt is to conduct amounting to an offence under section 7 of the Criminal Offences Act; and (b) conspiracy is to conduct amounting to an offence of conspiracy under section 11(1) of the Criminal Offences Act.

Responsibility of commanders and other superiors.65.(1) This section applies in relation to− (a) offences under this Part; and (b) offences ancillary to offences under this Part.(2) A military commander, or a person effectively acting as a military commander, is responsible for offences committed by forces under his effective command and control, or his effective authority and control, as a result of his failure to exercise control properly over such forces where he− (a) either knew, or owing to the circumstances at the time, should have known that the forces were committing or about to commit such offences; and (b) failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.(3) With respect to superior and subordinate relationships not described in subsection (2), a superior is responsible for offences committed by subordinates under his effective authority and control, as a result of his failure to exercise control properly over such subordinates where– (a) he either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such offences; (b) the offences concerned activities that were within his effective responsibility and control; and (c) he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.(4) A person responsible under this section for an offence is regarded as aiding, abetting, counselling or procuring the commission of the offence.

(3) The Regulations made under subsection (2) may authorise the Minister– (a) to appoint a person to act on behalf of the ICC for the purposes of enforcing the order; and (b) to give such directions to the appointed person as appear to him necessary.

(4) The Regulations made under subsection (2) shall provide for registration of the order by the court as a precondition of enforcement.

Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties.3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties.4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.

1..........................2.........................3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.4................

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